Iatric Investment (Private) Limited v Mirate Investment (Private) Limited and Sheriff of the High Court of Zimbabwe

Iatric Investment (applicant) operated Dandaro Hospital on premises leased from Mirate Investment (respondent) under a five-year lease agreement entered into in 2010. The applicant failed to pay rent from April 2014, and by the time of this application, arrear rentals amounted to $197,476.30 (later stated as $332,414.80). In November 2015, after being notified of the breach, applicant refused to pay rent, claiming that its former directors had improperly acquired shares in the respondent company while knowing applicant had a right of first refusal. The respondent issued summons in December 2015 seeking cancellation of the lease, ejectment, and payment of arrears. The applicant's lawyers failed to file a plea after receiving a notice to plead on 4 March 2016, allegedly due to misfiling by a receptionist. Despite being advised on 6 May 2016 that it was barred from pleading, applicant took no action. Default judgment was granted on 12 May 2016. The applicant filed an application for rescission and then an urgent application on 28 June 2016 to stay execution of the writ.

• Whether the urgent application to stay execution demonstrated the requisite urgency
• Whether urgency was self-created by the applicant's conduct
• Whether a court remains functus officio after declaring a matter not urgent without hearing oral arguments
• Whether the applicant had reasonable prospects of success in its rescission application
• Whether the pending application for joinder barred the granting of default judgment
• Whether costs on a higher scale were justified

1. The matter was struck off the urgent roll. 2. The applicant was ordered to pay costs of suit for the urgent application on a legal practitioner and client scale.

The binding legal principles established are: (1) Urgency in urgent applications must be assessed against the totality of circumstances, not merely the catastrophic event triggering the application. The attachment of property does not itself create urgency. (2) A party cannot establish urgency through self-created circumstances, particularly where the party failed to act timeously after being notified of being barred from pleading. (3) While a court is not functus officio after endorsing 'not urgent' without hearing oral arguments, and parties retain the right to be heard, oral submissions will rarely clothe an application with urgency not already evident in the affidavits. The role of affidavits remains primary in application proceedings. (4) A tenant cannot withhold rent or defend against ejectment based on disputes or counterclaims that have no correlation with the lease agreement or the landlord's obligations thereunder. The basic obligations of a lessor (to deliver premises, maintain them, and ensure undisturbed use) must be breached to justify withholding rent. (5) In assessing prejudice for stay of execution, courts will consider whether rentals are disputed, the party's intention to pay, and the overall conduct of the parties.

The court made several non-binding observations: (1) The court noted somewhat critically that applicant's approach was one of 'knocking long and loud enough until the door will finally be opened' through changing lawyers and persisting with the application. (2) The court observed that the applicant had 'chosen to build dams' rather than 'building bridges at its time of crisis' by refusing to pay rent instead of addressing the payment issue. (3) The court commented that some parties and practitioners have formed the mistaken view that urgency in the legal sense is confined to acting in response to catastrophic events like knowledge of a writ of execution. (4) The court noted there are many applications filed as urgent that clearly show no urgency in substance and frequently reveal self-inflicted urgency. (5) The court observed it is within the realm of a judge to control proceedings and prevent abuse of court process by sifting the wheat from chaff while remaining alive to parties' right to be heard. (6) The court suggested that the applicant could still pursue a separate case against its former directors regarding the share transaction dispute, which has nothing to do with the rental obligations.

This case reinforces important principles in Zimbabwean civil procedure regarding: (1) the requirements for establishing urgency in urgent applications, particularly the distinction between self-created urgency and genuine urgency; (2) the primacy of affidavits in application proceedings and the limited role of oral submissions in establishing urgency; (3) the principle that a tenant cannot withhold rent based on disputes unrelated to the lease agreement itself or the landlord's obligations under the lease; (4) the proper assessment of prospects of success in applications for stay of execution pending rescission; and (5) the circumstances justifying costs on a higher scale. The judgment serves as a warning against abuse of the urgent application process and emphasizes that courts will look at the totality of circumstances and conduct holistically rather than focusing solely on technical explanations for default.